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"Viewed against the backdrop of SCOs plethora of public statements concerning IBMs and others infringement of SCOs purported copyrights to the Unix software, it is astonishing that SCO has not offered any competent evidence to create a disputed fact regarding whether IBM has infringed SCOs alleged copyrights through IBMs Linux activities," Kimball wrote.

"Further, SCO, in its briefing, chose to cavalierly ignore IBMs claims that SCO could not create a disputed fact regarding whether it even owned the relevant copyrights," the judge wrote. This refers to the matter that Novell Inc. is claiming that it, and not SCO, actually owns Unixs intellectual property.

The judge also said The SCO Group Inc. has muddled its own case. "Notwithstanding SCOs puzzling denial in its briefing that it has not alleged a claim against IBM for copyright infringement arising out of its use, reproduction, or improvement of Linux, it clearly has alleged such a claim," Kimball wrote.

Despite this, Kimball hasnt dismissed SCOs case. "Nevertheless, despite the vast disparity between SCOs public accusations and its actual evidence—or complete lack thereof—and the resulting temptation to grant IBMs motion, the court has determined that it would be premature to grant summary judgment."

As for his reasoning behind the decision, Kimball said, "It is apparent that complete discovery is necessary prior to the just resolution of any claim."

Lawrence Rosen, an open-source legal expert and partner in the Ukiah, Calif.-based law firm Rosenlaw & Einschlag, said an early dismissal could lead to a drawn-out appeals process.

"A premature decision by the court to dismiss SCOs complaints before discovery is complete would open this up to a lengthy appeal, delaying closure even more. So, I can understand why the court refused to grant partial summary judgment at this stage."

Still, Rosen said, "The judge has telegraphed a message to SCO: Put up or shut up. That will happen in due course."

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